ON APPEAL FROM THE CROWN COURT AT BRISTOL
MRS JUSTICE MAY
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SPENCER
MRS JUSTICE CARR
|- and -
Richard Smith QC and Ms Fiona Elder (instructed by Elite Solicitors) for the Respondent
Hearing date : 29 November 2017
Crown Copyright ©
Lady Justice Sharp:
The Belgian 2002 Act
"For the purpose of this Act, euthanasia is defined as intentionally terminating life by other than the person concerned, at the latter's request."
"3.1 The physician who performs euthanasia commits no criminal offence when he/she ensures that:
1) the patient has attained the age of majority or is an emancipated minor, and is legally competent and conscious at the moment of making the request;
2) the request is voluntary, well-considered and repeated, and is not the result of any external pressure;
3) the patient is in a medically futile condition of constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident;
and when he/she has respected the conditions and procedures as provided in this Act.
3.2 Without prejudice to any additional conditions imposed by the physician on his/her own action, before carrying out euthanasia he/she must in each case:
1) inform the patient about his/her health condition and life expectancy, discuss with the patient his/her request for euthanasia and the possible therapeutic and palliative courses of action and their consequences. Together with the patient, the physician must come to the believe (sic) that there is no reasonable alternative to the patient's situation and that the patient's request is completely voluntary;
2) be certain of the patient's constant physical or mental suffering and of the durable nature of his/her request. To this end, the physician has several conversations with the patient spread out over a reasonable period of time, taking into account the progress of the patient's condition;
3) consult another physician about the serious and incurable character of the disorder and inform him/her about the reasons for this consultation……
3.3 If the physician believes the patient is clearly not expected to die in the near future, he/she must also:
consult a second physician…..
allow at least one month between the patient's written request and the act of euthanasia."
Relevant procedural history
"The jury would be entitled to say that Mr van Dongen's medically futile condition was constant and unbearable. In those circumstances, the jury could conclude his decision to undergo euthanasia did not break the chain of causation. They might even be entitled to say the defendant's act was the main or principal cause of death. They would certainly, in my judgment, be entitled to say it was a least a substantial cause…"
The contested rulings
The first evidential ruling
The second evidential ruling
Submission of no case to answer
The judge's decision
"It seems to me that if one is to accord proper respect to the decision and actions of persons with free will acting autonomously (whether as a victim or third-party intervener) then the legal result of their free and voluntary choice and/or positive act to end their own or another's life must as I see it be to break with what had gone before, disconnecting both the choice to die and the death itself from the circumstances generating the occasion for it. When Mark van Dongen made the brave, desperate, profoundly sad decision that his life with such appalling disability was so burdensome that he preferred to leave it, and when the doctors opened the door for him to go and ushered him through, his choice and their actions each disconnected his death, in law, from the culpable activity which had caused his dreadful injuries. In my view, a jury properly directed, could reach no other conclusion and for that reason I have decided that the case of murder must be withdrawn from them."
"20. …It is trite law, and was common ground before us, that the meaning of causation is heavily context-specific and that Parliament (or in some cases the courts) may apply different legal rules of causation in different situations. Accordingly it is not always safe to suppose that there is a settled or "stable" concept of causation which can be applied in every case."
They went on to say:
" That said, there are well-recognised considerations which repeatedly arise in cases turning on causation. For the appellant Hughes, Mr Robert Smith QC relied upon two such recurrent propositions. The first is that a chain of causation between the act of A and a result may be broken by the voluntary, deliberate and informed act of B to bring about that result. The second is the distinction between "cause" in the sense of a sine qua non without which the consequence would not have occurred, and "cause" in the sense of something which was a legally effective cause of that consequence…
22. … Where there are multiple legally effective causes, whether of a road traffic accident or of any other event, it suffices if the act or omission under consideration is a significant (or substantial) cause, in the sense that it is not de minimis or minimal. It need not be the only or the principal cause. It must, however, be a cause which is more than de minimis, more than minimal: see R v Hennigan (1971) 1 All ER 133…
23. …In the case law there is a well recognised distinction between conduct which sets the stage for an occurrence and conduct which on a common sense view is regarded as instrumental in bringing about the occurrence. There is a helpful review of this topic in the judgment of Glidewell LJ in Galoo Ltd v Bright Grahame Murray (a firm)  1 WLR 1360. Amongst a number of English and Commonwealth cases of high authority, he cited at pp 1373-1374 the judgment of the High Court of Australia in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515, in which Mason CJ emphasised that it is wrong to place too much weight on the "but for" test to the exclusion of the "common sense" approach which the common law has always favoured, and that ultimately the common law approach is not susceptible to a formula."
" Courts have used a number of analytical approaches to determine when an intervening act absolves the accused of legal responsibility for manslaughter. These approaches grapple with the issue of the moral connection between the accused's acts and the death; they acknowledge that an intervening act that is reasonably foreseeable to the accused may well not break the chain of causation, and that an independent and intentional act by a third party may in some cases make it unfair to hold the accused responsible. In my view, these approaches may be useful tools depending upon the factual context. However, the analysis must focus on first principles and recognize that these tools do not alter the standard of causation or substitute new tests. The dangerous and unlawful acts of the accused must be a significant contributing cause of the victim's death."
"In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased adding that the accused's acts need not be the sole cause or even the main cause of death it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.
It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused's acts can fairly be said to have made a significant contribution to the victim's death. We think the word "significant" conveys the necessary substance of a contribution made to the death which is more than negligible."
"It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound."
"If you conclude that [the deceased] may have taken steps which caused his own death, for example, deliberately reopening his wounds, if you are satisfied that he would not have done that…if the defendant had not attacked and wounded him, if the only reason was because of the attack then the defendant would have caused his death even though the deceased himself assisted therein …[but] if you come to the conclusion that he might have taken his own life in any event whether or not he had been cut in the way that he was…you may think it would not be therefore, the attack, an operating and substantial cause."
"The real question in this case, as in Smith, Blaue and Malcharek was, as the judge correctly directed the jury, whether the injuries inflicted by the appellant were an operating and significant cause of the death. It is immaterial whether some other cause was operating. It would not, in our judgment, be helpful to juries if the law required them, as [defence counsel] suggest, to decide causation in a case such as the present by embarking on an analysis of whether a victim had treated himself with mere negligence or gross neglect, the latter breaking but the former not breaking the chain of causation between the defendant's wrongful act and the victim's death.
Throughout this century in the civil law, which in this area is concerned with the apportionment of fault and causation for the purpose of compensation, judges and academic writers have grappled with causation and the roles which the concept of novus actus interveniens and foreseeability do or should play in it. Conclusions as to the true analysis have varied from time to time at the highest level. It would in our judgment be a retrograde step if those niceties were to invade the criminal law, which as Beldam LJ pointed out in Cheshire at page 255, is not concerned with questions of apportionment.
The correct approach in the criminal law is that enunciated in Smith and the other authorities to which we have referred: were the injuries inflicted by the defendant an operating and significant cause of death? That question, in our judgment, is necessarily answered, not by philosophical analysis, but by common sense according to all the circumstances of the particular case.
In the present case the cause of the deceased's death was bleeding from the artery which the defendant had severed. Whether or not the resumption or continuation of that bleeding was deliberately caused by the deceased, the jury were entitled to find that the defendant's conduct made an operative and significant contribution to the death."
"If the wounds inflicted by D, however maltreated by the deceased's (V's) own acts, were an operating and substantial physical cause of death, then the decision seems to be well supported by the authorities. There was then more than one cause of death and it is sufficient that the wound inflicted by D was one of two or more causes. If, however, the wounds were effectively healed when D took the Stanley knife to himself, it is not so clear that the wounds were an operating and substantial physical cause of death. Arguably, it was then the same as if he had cut his throat or blown his brains out--acts which would have killed him whether he was wounded or not. The direction was in sufficiently wide terms for the jury to have convicted even if, and, indeed, was in terms which were only necessary only if, they thought that was effectively the situation.
It was apparently regarded as immaterial that P's conduct was unforeseeable. In this respect the decision is not easily reconcilable with the long line of cases referred to in the commentary on Corbett, above. If, in consequence of being wounded, V had blown his brains out, that line of cases holds that the jury must be satisfied that such an act was within the range of responses which might have been expected from a victim in his situation. If this reaction (whether by blowing his brains out or doing what he actually did) was (in the words used by the defendant in Roberts (1971) 55 Cr.App.R. 95 so "daft as to make it [V's] own voluntary act", the chain of causation is broken. It seems that, pace Blaue, D does not have to take a "daft" victim as he finds him."
He went on to say:
"It is interesting to note (The Times, June 14, 1996) that a coroner held that "cowboy builders" had unlawfully killed an elderly man who hanged himself because of his distress at having been cheated by the cowboys into paying £4,000 for minor building work. On the direction in the present case, the conclusion that the cowboys caused the death seems to be correct: the deceased took the action because he had been cheated and he would not have taken that action if he had not been cheated. But, if we have to ask the further question, whether suicide was within the range of responses which might have been expected from a victim of such conduct, the answer is by no means so clear…"
"The test is: Was [the victim's reaction] the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequences of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so 'daft,' in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury."
"…the nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question whether the deceased's conduct was proportionate to the threat; that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation. It should of course be borne in mind that a victim may in the agony of the moment do the wrong thing."
He went on to say:
"The jury should consider whether the deceased's reaction in jumping from the moving car was within the range of response which might be expected from a victim placed in the situation he was. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation."
"It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim's religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death."
"Now the whole subject of causation in the law has been the subject of a well-known and most distinguished treatise by Professors Hart and Honoré, Causation in the Law. ..Among the examples which the authors give of non-voluntary conduct, which is not effective to relieve the accused of responsibility, are two which are germane to the present case, viz. a reasonable act performed for the purpose of self-preservation, and an act done in performance of a legal duty.
There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused's own act, does not operate as a novus actus interveniens. If authority is needed for this almost self-evident proposition, it is to be found in such cases as Pitts (1842) C. & M. 284 , and Curley (1909) 2 Cr.App.R. 96. In both these cases, the act performed for the purpose of self-preservation consisted of an act by the victim in attempting to escape from the violence of the accused, which in fact resulted in the victim's death. In each case it was held as a matter of law that, if the victim acted in a reasonable attempt to escape the violence of the accused, the death of the victim was caused by the act of the accused. Now one form of self-preservation is self-defence; for present purposes, we can see no distinction in principle between an attempt to escape the consequences of the accused's act, and a response which takes the form of self-defence. Furthermore, in our judgment, if a reasonable act of self-defence against the act of the accused causes the death of a third party, we can see no reason in principle why the act of self-defence, being an involuntary act caused by the act of the accused, should relieve the accused from criminal responsibility for the death of the third party…
No English authority was cited to us, nor we think to the learned judge, in support of the proposition that an act done in the execution of a legal duty, again of course being an act itself caused by the act of the accused, does not operate as a novus actus interveniens ...as a matter of principle such an act cannot be regarded as a voluntary act independent of the wrongful act of the accused… Where, for example, a police officer in the execution of his duty acts to prevent a crime, or to apprehend a person suspected of a crime, the case is surely a fortiori. Of course, it is inherent in the requirement that the police officer, or other person, must be acting in the execution of his duty that his act should be reasonable in all the circumstances: see section 3 of the Criminal Law Act 1967…"
He went on to say:
"The principles which we have stated are principles of law… It follows that where, in any particular case, there is an issue concerned with what we have for convenience called novus actus interveniens, it will be appropriate for the judge to direct the jury in accordance with these principles. It does not however follow that it is accurate to state broadly that causation is a question of law. On the contrary, generally speaking causation is a question of fact for the jury… But that does not mean that there are no principles of law relating to causation, so that no directions on law are ever to be given to a jury on the question of causation. On the contrary, we have already pointed out one familiar direction which is given on causation, which is that the accused's act need not be the sole, or even the main, cause of the victim's death for his act to be held to have caused the death… in cases where there is an issue whether the act of the victim or of a third party constituted a novus actus interveniens, breaking the causal connection between the act of the accused and the death of the victim, it would be appropriate for the judge to direct the jury, of course in the most simple terms, in accordance with the legal principles which they have to apply. It would then fall to the jury to decide the relevant factual issues which, identified with reference to those legal principles, will lead to the conclusion whether or not the prosecution have established the guilt of the accused of the crime of which he is charged…"
"If despite the intervening event, D's conduct remains a "substantial and operative cause" of the result, D will remain responsible; and if the intervention is by another person, that actor may also become liable in such circumstances. Subject to this, and some exceptional cases the principles appear to be as follows: …
(3) In relation to third party interventions, D will not be liable if a third party's intervening act is either;
(a) One of a free, deliberate and informed nature (whether reasonably foreseeable or not);
(b) If not a free, deliberate and informed act, one which was not reasonably foreseeable...
(5) In relation to victims:
(a) D will be liable if the victim has a pre-existing condition (which includes, after Blaue a religious belief) rendering him unusually vulnerable to physical injury…
(b) D will not be liable if the victim's subsequent conduct in response to D's act is not within a range of responses that could be regarded as reasonable in the circumstances. Was V's act so "daft" as to be wholly disproportionate to D's act? If so, it will break the chain."
" In my view, the chain of causation should not be broken only because the specific subsequent attack by the bouncer was not reasonably foreseeable. Because the time to assess reasonable foreseeability is at the time of the initial assault, rather than at the time of the intervening act, it is too restrictive to require that the precise details of the event be objectively foreseeable. In some cases, while the general nature of the ensuing acts and the risk of further harm may be reasonably likely, the specific manner in which it could occur may be entirely unpredictable. From the perspective of moral responsibility, it is sufficient if the general nature of the intervening act and the risk of non-trivial harm are objectively foreseeable at the time of the dangerous and unlawful acts.
 For these reasons, I conclude that it is the general nature of the intervening acts and the accompanying risk of harm that needs to be reasonably foreseeable. Legal causation does not require that the accused must objectively foresee the precise future consequences of their conduct…"
Deliberate and unlawful act
1. Are you sure that the defendant deliberately threw acid over Mr van Dongen?
2. Are you sure that at the time of the attack the defendant intended to kill Mr van Dongen or at least cause him serious bodily harm?
3. In order to convict the defendant on count 1 you must be sure that the defendant's unlawful act of throwing acid over Mr van Dongen caused his death.
This is a question of fact that you should answer using your collective common sense. It is common ground that but for the injuries caused by the acid attack, Mr van Dongen would not have undergone voluntary euthanasia. If you are sure this is the case, go on to ask yourself:
(a) Are you sure that the defendant's unlawful act of throwing acid over Mr van Dongen was a significant and operating cause of death? The injuries do not need to be the only cause of death but they must play more than a minimal part in causing Mr van Dongen's death.
Consider all the circumstances, including the nature and extent of Mr van Dongen's injuries, the passage of time, intervening events, the involvement of the doctors in carrying out the voluntary euthanasia at Mr van Dongen's request, what Mr van Dongen was told and what he said.
If your answer is yes, proceed to question 3(b). If you are not sure, your verdict on count 1 will be not guilty.
(b) Are you sure that at the time of the acid attack it was reasonably foreseeable that the defendant would commit suicide as a result of his injuries? In answering this question consider all the circumstances, including the nature of the attack, what the defendant did and said at the time and whether or not Mr van Dongen's decision to undergo voluntary euthanasia fell within the range of responses which might have been expected from a victim in his situation. If your answer is yes, your verdict on count 1 will be guilty. If your answer is no, your verdict on count 1 will be not guilty.
Note 5 “Whoever shall unlawfully…administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as to thereby endanger the life of such a person, or so thereby to inflict on such a person any grievous bodily harm, shall be guilty of [and offence]…” [Back] Note 6 It is by no means clear that the mere fact that an intervening act is unlawful is determinative as to its status as anovus actus interveniens: see for example, the obiter observations of Lord Clarke in R v Gnango  UKSC 59 2 WLR 17, 1 Cr. App. R. 1 at paras 83 to 91. See further, the discussion of Pagett in Smith and Hogan 14th edition at para 18.104.22.168, p.98.
Note 5 “Whoever shall unlawfully…administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as to thereby endanger the life of such a person, or so thereby to inflict on such a person any grievous bodily harm, shall be guilty of [and offence]…” [Back]
Note 6 It is by no means clear that the mere fact that an intervening act is unlawful is determinative as to its status as anovus actus interveniens: see for example, the obiter observations of Lord Clarke in R v Gnango  UKSC 59 2 WLR 17, 1 Cr. App. R. 1 at paras 83 to 91. See further, the discussion of Pagett in Smith and Hogan 14th edition at para 22.214.171.124, p.98. [Back]